62 A. 756 | Conn. | 1906
This action was brought at first by the plaintiff Muller alone, upon the common counts. He claimed to be the bona fide owner by assignment from Henrietta S. Witte, who was in fact the wife of the defendant, of a debt alleged to be due from the defendant to his said wife. Subsequently, upon the motion of said Muller, said Henrietta was made a coplaintiff in the action. The bill of particulars as filed in the case was for money loaned to, and paid out for, the defendant by his said wife.
After this the plaintiffs filed an additional count, alleging in substance these facts: That Henrietta was the wife of the defendant, married to him in 1874, but that he had abandoned her before this suit was commenced; that on or before February 2d 1898, she loaned to him $900 under an oral agreement that he would convey to her certain real estate of his in New Britain; that he had refused to make said conveyance; and that she had assigned said claim to Muller without consideration, and under a misapprehension of the law relating to married women abandoned by their husbands. This last allegation, as also the allegation that Henrietta was the wife of the defendant, married to him in 1874, were admitted in the answer, and the other allegations were denied.
The material facts found are these: The defendant and said Henrietta intermarried in 1874, and lived together until some time in February, 1898. In 1892 Henrietta received the sum of $950 as the proceeds of a policy of life insurance *497 paid to her upon the death of her mother. Between November, 1892, and May, 1893, she, at the request of the defendant, "delivered to him a considerable portion of said sum of $950 — not as a gift, but to enable the defendant to use the same in the payment of his personal debts and obligations." The defendant used said money for the purposes specified, has never repaid the same, "and claims the right to retain the same as statutory trustee of his wife." The assignment of said Henrietta's claim against her husband to the plaintiff Muller, set up in the complaint, was made without valuable consideration, and "for the sole purpose of enabling said Muller to bring this action in his own name for the benefit of Henrietta S. Witte." In February, 1898, said Henrietta, voluntarily and without lawful cause or excuse, left her husband and her home, and since that time has voluntarily continued to live apart from her husband and to support herself, and her husband has not abandoned her. The only relief claimed was "one thousand dollars damages."
Upon these facts the court rendered judgment for the defendant; and we think it did not err in so doing. Upon the facts found, Muller clearly had no right to maintain this action; for he was not the assignee and equitable and bona fide owner of the cause of action. Bixby v. Parsons,
It is, we think, equally clear that the other plaintiff, the wife, cannot maintain this action against her husband. She was married to the defendant in 1874, and this is an action at law for the recovery of money not alleged nor shown to be her separate property, and not a proceeding in equity for the recovery or protection of her separate property. The rule is that "a party seeking equitable relief shall specifically demand it as such, unless the nature of the demand itself indicates that the relief sought is equitable." Practice Book, p. 43, § 138. Nothing of that kind is indicated in the complaint in this case. It seeks merely the recovery of a legal debt arising out of a loan made by the wife to her husband, *498
or out of an agreement made between them; it asks only for money damages; and it must be regarded as an action at law and not a proceeding in equity. Baxter v. Camp,
Upon the question whether the defendant is entitled to hold, as statutory trustee, the money delivered to him by his wife, we express no opinion.
There is no error.
In this opinion the other judges concurred.
